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Kronenberger Motion For Summary Judgment

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MrVidmar

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Jun 15, 2009, 7:53:23 PM6/15/09

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SUSAN POLGAR VS.
UNITED STATES OF AMERICA
CHESS FEDERATION, INC.,
and
BILL GOICHBERG, JIM BERRY,
RANDY BAUER, and
RANDALL HOUGH, all Individually and in their Representative Capacities as
Members of the Executive Board of the United States of America Chess
Federation; BILL HALL, Individually and in his
Representative Capacity as Executive
Director of the United States of America Chess Federation; BRIAN
MOTTERSHEAD; HAL BOGNER; CHESS MAGNET, L.L.C.; CONTINENTAL CHESS
INCORPORATED; JEROME HANKEN; BRIAN LAFFERTY; SAM SLOAN; KARL S.
KRONENBERGER; and KRONENBERGER BURGOYNE, LLP C.A. NO. 5-08CV0169-C

BRIEF IN SUPPORT OF KRONENBERGER BURGOYNE, LLP AND KARL S.
KRONENBERGER'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Submitted by,
William P. Huttenbach
State Bar No. 24002330
HIRSCH & WESTHEIMER, P.C. 700 Louisiana, 25th Floor
Houston, Texas 77002-2772
(713) 220-9184 / (713) 223-9319 FAX Email: phuttenbachahirschwest.com
ATTORNEY-IN-CHARGE FOR DEFENDANTS, KARL S. KRONENBERGER AND KRONENBERGER
BURGOYNE, LLP

TABLE OF CONTENTS
Page
SUMMARY OF MOTION 2
STANDARD FOR SUMMARY JUDGMENT 3
UNDISPUTED FACTS 3
A. Kronenberger was engaged by the USCF. 4
B. Kronenberger begins investigating as requested by the USCF. 5
ARGUMENTS AND AUTHORITIES 8
A. Defendants were never Plaintiff's attorney. 8
B. California law demonstrates that Kronenberger was
never Plaintiff's attorney in her individual capacity. 10
C. Texas law also demonstrates that Kronenberger was
never Plaintiff's attorney in her individual capacity. 12
D. Polgar's own statements made in various email
communications and/or other postings demonstrate
that Polgar did not believe that Karl Kronenberger
and/or Kronenberger Burgoyne, LLP, were acting
as her attorneys. At a minimum, Plaintiff should be
estopped from claiming to the contrary. 21
E. Legal Malpractice. 23
F. Even though Polgar's sole claims against Kronenberger appear to be
legal malpractice and fiduciary duty claims, in an abundance of caution,
Kronenberger requests a traditional and/or "no-evidence" summary
judgment on all the remaining claims to the extent that such claims are
against Kronenberger and Kronenberger Burgoyne, LLP. 24
G. Polgar has released Kronenberger from all claims in a
March 2, 2009 settlement agreement 28
H. Plaintiff's remaining claims fail for other reasons. 29
I. Attorneys' Fees 36
CONCLUSION 37

TABLE OF AUTHORITIES
Page
Federal Cases
Anderson v. Consol. Rail Corp., 297 F.3d 242 (3d Cir. 2002) 3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 3
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986) 3
Competitive Technologies v. Fujitsu Ltd., 286 F. Supp. 2d 1118 (N.D.
Cal. 2003) 27
Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) 30
Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d
1019 (9th Cir. 2008) 27
Flores v. Emerich & Fike, 416 F. Supp. 2d 885 (E.D. Cal. 2006) 27
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 30, 31
Heck v. Humphrey, 512 U.S. 477 (1994) 28
J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc.,
76 F.3d 1245 (1st Cir. 1996) 3
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 29, 30, 33, 34
Rosenblatt v. Baer, 383 U.S. 75 (1966) 32
Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007) 3
St. Amant v. Thompson, 390 U.S. 727 (1968) 34
Streber v. Hunter, 221 F.3d 701 (5th Cir. 2000) 23
Synergy Tech & Design Inc. v. Terry, 2007 WL 1288464 (N.D. Cal. May
02, 2007) 10
Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431 (5th Cir. 1987) 30
State Cases
Alexander v. Turtur & Assoc., 146 S.W.3d 113 (Tex. 2004) 23
Belo Corp. v. Publicaciones Paso Del Norte, S.A. de C. V., 243 S.W.3d 152
(Tex. App.ï¿½El Paso 2007, n.p.h.) 35
Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780
(Tex. 2006) 23
Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) 34, 35
Bidna v. Rosen, 19 Cal. App. 4th 27 (1993) 28
Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) 13
Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) 29, 33
Casso v. Brand, 776 S.W.2d 551 (Tex. 1989) 33, 34
Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989) 23
Cuyler v. Minns, 60 S.W.3d 209 (Tex. App. - Houston [14th Dist.] 2001,
pet. denied) 23
Dearing, Inc. v. Spiller, 824 S.W.2d 728 (Tex. App. ï¿½ Fort Worth 1992,
writ denied) 13
Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472 (Tex. 1995) 30
Fagan v. LaGloria Oil & Gas Co., 494 S.W.2d 624 (Tex. Civ. App. ï¿½ Houston
[14th Dist.] 1973, no writ) 12
Fisher v. Burge, 2002 WL 788830 (Cal. App. 2 Dist 2002) 11
Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex.2003) 34
Fox v. Pollack, 181 Cal. App. 3d 954, 226 Cal. Rptr. 532 (Cal. Ct.
App. 1986) 10
Freedom Newspapers v. Cantu, 168 S.W.3d 847 (Tex. 2005) 34
Hartford Cas. Ins. Co. v. Walker Cty. Agency, Inc., 808 S.W.2d 681 (Tex.
App. ï¿½
Corpus Christi 1991, no writ) 13
Hawthorne v. Guenther, 917 S.W.2d 924 (Tex. App. ï¿½ Beaumont 1996, writ
denied) 13
Hoover v. Larkin, 196 S.W.3d 227 (Tex. App. ï¿½ Houston [1st Dist.] 2006,
pet. denied) 23
Joe v. Two Thirty Nine Jt. V., 145 S.W.3d 150 (Tex. 2004) 23

Kelly v. Gaines, 181 S.W.3d 394 (Tex. App. ï¿½ Waco 2005) 13
Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942) 13
Koo v. Rubio's Restaurants, Inc., 109 Cal. App. 4th 719, 135 Cal. Rptr.
2d 415
(Cal. Ct. App. 2003) 10
McCoy v. Hearst Corpï¿½ 727 P.2d 711 (Cal. 1986) 32
Meehan v. Hopps, 144 Cal. App. 2d 284, 301 P.2d 10 (Cal. App. 1956) 11
Mims v. Beall, 810 S.W.2d 876 (Tex. App. ï¿½ Texarkana 1991, no writ) 13
O'Donnell v. Smith, 234 S.W.3d 135 (Tex. App. - San Antonio 2007, pet.
filed 11-2-07) 23
Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) 23
Ramona Unified School Dist. v. Tsiknas, 135 Cal. App. 4th 510 (2005) 27
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995) 33, 34
Responsible Citizens v. Superior Court, 16 Cal. App. 4th 1717, 20 Cal.
Rptr. 2d 756
(Cal. Ct. App. 1993) 10
Rusheen v. Cohen, 37 Cal. 4th 1048 (2006) 27
Skarbrevik v. Cohen, England & Whitfield, 231 Cal. App. 3d 692,
282 Cal. Rptr. 627 (Cal. Ct. App. 1991) 10, 11
Sutton v. Reagan & Gee, 405 S.W.2d 828 (Tex. Civ. App. - San Antonio 1966,
writ refd n.r.e.) 12
Trear v. Sills, 69 Cal. App. 4th 1341 (1999) 28
Turner v. KTRK Television, 38 S.W.3d 103 (Tex. 2000) 34
Vinci v. Waste Management, Inc., 36 Cal. App. 4th 1811, 43 Cal. Rptr. 2d
337 (1995) 11
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) 33, 34
Federal Rules
Fed. R. Civ. P. 56 3
State Rules
Tex. R. Evid. 511 15

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SUSAN POLGAR VS.
UNITED STATES OF AMERICA
CHESS FEDERATION, INC.,
and
BILL GOICHBERG, JIM BERRY,
RANDY BAUER, and
RANDALL HOUGH, all Individually and ï¿½
in their Representative Capacities as
Members of the Executive Board of the
United States of America Chess Federation; ï¿½
BILL HALL, Individually and in his
Representative Capacity as Executive
Director of the United States of America
Chess Federation; BRIAN MOTTERSHEAD; ï¿½ HAL BOGNER; CHESS MAGNET, L.L.C.;
ï¿½ CONTINENTAL CHESS INCORPORATED; ï¿½ JEROME HANKEN; BRIAN LAFERTY; ï¿½ SAM
SLOAN; KARL S. KRONENBERGER; ï¿½ and KRONENBERGER BURGOYNE, LLP ï¿½ C.A. NO.
5-08CV0169-C

BRIEF IN SUPPORT OF KRONENBERGER BURGOYNE, LLP AND KARL S.
KRONENBERGER'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
Kronenberger Burgoyne, LLP and Karl S. Kronenberger (collectively
"Kronenberger" and/or "Defendants") hereby submit (a) this brief (the
"Brief') in support of Kronenberger's Motion for Partial Summary
Judgment against Plaintiff Susan Polgar ("Polgar"), (b) the Appendix to
the Brief ("Karl S. Kronenberger App.") and (c) the Declaration of Karl
S. Kronenberger in support of Kronenberger's Motion for Partial Summary
Judgment and other attached summary judgment evidence.

SUMMARY OF MOTION
1. Defendants are entitled to a judgment as a matter of law on all of
Plaintiff's claims against them. It is undisputed that Kronenberger was
engaged by the USCF, as counsel for the USCF only, to investigate, among
other things, allegations of wrongdoing by Polgar herself and her
husband, as detailed in the so-called "Mottershead Report." See Exhibit
A, Tab 1 (Appendix, p. 9).' On or about October 22, 2007, the USCF
executed an engagement letter with Kronenberger that specifically
identified the parties. Several weeks later, on December 1, 2007, Polgar
stated in an email that Kronenberger does not represent her ("He
[Kronenbergerl does not represent me or Paul."). Accordingly, Polgar's
legal malpractice and breach of fiduciary duty claims must fail.
2. Plaintiff has brought claims for slander, libel, defamation and
slander per se; business disparagement; tortious interference with
contracts and business relationships; intentional infliction of
emotional distress; negligent infliction of emotional distress;
negligence and negligence per se; civil conspiracy; gross negligence;
and breach of fiduciary duty/legal malpractice.2 Plaintiff later filed
an Amended Complaint and added new claims for abuse of process,
indemnification, and malicious prosecution, and Plaintiff sought
attorneys' fees. Polgar has provided no evidence in support of any her
other claims against Kronenberger and for the various reasons more fully
explained below, summary judgment is proper on all of Plaintiff's claims
against Kronenberger. This motion is being filed by only these
Defendants and even though it is a partial motion for summary judgment,
it seeks to end all claims by and between Plaintiff and these Defendants.
Under California law, such an engagement agreement should be kept
confidential so Defendants have redacted portions of same.
2 Some of Plaintiff's claims were dismissed by this Court.

STANDARD FOR SUMMARY JUDGMENT
3. Summary judgment is proper in a case where there is no genuine issue
of material fact. Fed. R. Civ. P. 56(c); Scott v. Harris, 550 U.S. 372,
127 S. Ct. 1769, 1776 (2007); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552 (1986). A defendant who seeks summary
judgment on a plaintiffs claim must demonstrate the absence of a genuine
issue of material fact by either (1) submitting summary-judgment
evidence that negates the existence of a material element of plaintiffs
claim or (2) showing there is no evidence to support an essential
element of plaintiffs claim. I. Geils Band Employee Benefit Plan v.
Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996); see
Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552.
4. Summary judgment is appropriate because the pleadings and other
undisputed evidence show that there is "no genuine issue as to any
material fact" and Defendants are "entitled to judgment as a matter of
law." See Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (finding that the threshold inquiry is
whether there are "any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."); Anderson v. Consol. Rail Corp.,
297 F.3d 242, 247 (3d Cir. 2002) (finding that a factual dispute is
"material" if it might affect the outcome of the case under governing law).
UNDISPUTED FACTS
5. Plaintiff is Susan Polgar ("Plaintiff' or "Polgar").
6. Defendants are United States of America Chess Federation, Inc.
("USCF"), Bill Goichberg, Individually and in his representative
capacity as a member of the Executive Board of the USCF, Jim Berry,
Individually and in his representative capacity as a member of the
Executive Board of the USCF, Randy Bauer, Individually and in his
representative capacity as a member of
3

the Executive Board of the USCF, Randall Hough, Individually and in his
representative capacity as a member of the Executive Board of the USCF,
Bill Hall, individually and in his representative capacity as Executive
Director of the USCF; Brian Mottershead; Hal Bogner; Continental Chess
Incorporated; Jerome Hanken; Brian Lafferty; Sam Sloan; Karl S.
Kronenberger; and Kronenberger Burgoyne, LLP.
7. Third-Party Defendant is Paul Truong ("Truong").
A. Kronenberger was engaged by the USCF.
8. As this Court is likely aware, one of the Defendants, Sam Sloan, on
October 2, 2007, filed a lawsuit styled Sam Sloan v. Hoainhan "Paul"
Truong, et al., Cause No. 1:07-cvï¿½08537-DC, in the United States
District Court, Southern District of New York. Sam Sloan sued many of
the same parties that had been sued by Plaintiff in this lawsuit. Sam
Sloan also sued Plaintiff in the New York lawsuit. See Exhibit B
(Appendix, p. 59).3 The Sam Sloan New York lawsuit was filed before the
USCF engaged Kronenberger.
9. In the Sam Sloan lawsuit, Sam Sloan alleged that Plaintiff, along
with her husband, Truong, were engaging in vicious personal attacks
against Sam Sloan, as detailed in the so-called "Mottershead Report."'
Mr. Sloan alleged that Plaintiff and her husband began making thousands
of internet postings that were defaming Sam Sloan. Sam Sloan claimed
that Plaintiff and/or her husband were impersonating people and were
making it appear that Sam Sloan had done all sorts of bad acts.5 Sam
Sloan also alleged that as a result of the personal attacks, he was not
re-elected as an Executive Board member for the USCF. Meanwhile,
Plaintiff and her husband were elected as board members. When Sam Sloan
sued the USCF and many of its
3 Defendants are not necessarily agreeing with the facts as alleged by
Sloan but are attaching same to show the date it was filed and to show
the accusations that were made against Polgar and Truong.
4 See paragraph nos. 3 and 4 in Exhibit B (Appendix, p. 59).
5 Sam Sloan repeated many of these claims in a pleading he previously
filed in this case.

board members and alleged that at least two of its board members
(Plaintiff and her husband) had done such alleged bad acts, it put the
USCF in a delicate situation as it was faced with the situation where a
former board member was suing the USCF and at least two of its current
board members. Importantly, there was a clear conflict of interest
between Polgar and Truong, on the
one hand, and the USCF, on the other hand.
10. Ultimately, the USCF's insurer obtained counsel to represent the
USCF and
several of the Defendants in the Sam Sloan New York lawsuit. Moreover,
the USCF's insurer
later engaged a separate counsel to represent Plaintiff and Truong.
Although the New York
lawsuit was eventually dismissed and appealed, Sam Sloan has stated his
intention to continue to
appeal the decisions made against him and/or pursue other litigation.
Consequently, the USCF and many other Defendants appear to be caught
between a much larger and ongoing conflict between Plaintiff and Truong
and Sam Sloan.
11. In defending the Sam Sloan litigation, the USCF began investigating
the claims contained in the Mottershead Report, being made in Sloan's
complaint against two of the
USCF's current board members, Plaintiff and her husband, Truong. To
assist the USCF in its
investigation, the USCF engaged a firm with an attorney familiar with
the internet issues in
dispute, Kronenberger. As seen by Exhibit A, Tab 1 (Appendix, p. 9), the
USCF, not Plaintiff,
engaged Kronenberger. Plaintiff knew that Kronenberger was engaged for
several purposes,
including representing the USCF in investigating the allegations in the
Mottershead Report and
in the Sam Sloan litigation.
B. Kronenberger begins investigating as requested by the USCF.
12. One of the first things that Kronenberger did once engaged was to
recommend that the USCF form a separate legal subcommittee, which did
not contain Polgar or Truong as members, as it was unclear at the time
whether or not Plaintiff and/or Truong did the alleged

acts; additionally, the legal subcommittee needed to confer
confidentially because Polgar and Truong were potentially adverse to the
USCF in the Sloan litigation. In investigating the allegations in Sam
Sloan's lawsuit, Plaintiff's husband was specifically asked to deny
having any involvement with the fake Sam Sloan postings, and Truong
refused to so specifically deny the accusations in writing. More
specifically, Kronenberger stated as follows in his letter dated
November 29, 2007 to Truong:
ï¿½ Formally admit or deny, in writing, whether you were involved in the
"Fake Sam Sloan" postings, or had knowledge of who made such postings;
ï¿½ Provide the IP address of all your home and work internet connections
since 2005, or provide consent for the Board to obtain and cooperate in
the Board obtaining, such IP addresses from ISP's and other entities;
ï¿½ Provide all information that would support your argument that you were
not located at your computer(s) at the time of alleged Fake Sam Sloan
postings, to include information relating to your travel;
ï¿½ Comply with the foregoing on or before December 7, 2007.
See Exhibit A, Tab 2 (Appendix, p. 15). Truong did not respond to the
letter. Instead, Truong's wife, Polgar, began communicating with
Kronenberger on behalf of her husband. Truong did not deny the claims in
writing. Truong did not provide access to his computer. Truong did very
little to try to demonstrate he was innocent.
13. Instead, Truong and Polgar continued making litigation threats
against the other
board members. The USCF began experiencing other new issues in having a
former board member, Sloan, sue the USCF and two of its current board
members, and then the two current board members began threatening the
other board members, and meanwhile the USCF is still having to defend
many specific allegations against two current board members, Plaintiff and

Truong.6 Even more unfortunate, the threatened claims became actual
litigation when Plaintiff filed this lawsuit. If they were truly
innocent, one would have thought that Plaintiff and Truong would have
cooperated and/or better cooperated in the investigation of the claims
and in defense of the claims being made by Sam Sloan.
14. Meanwhile, after the legal subcommittee was formed to address such
issues, highly sensitive attorney-client privileged emails that
Kronenberger sent to the legal subcommittee members appeared in
Plaintiffs possession. See Exhibit A, Tab 4 (Appendix, p. 37). In the
privileged emails, Kronenberger was providing legal advice to the USCF
about its legal position vis-ï¿½-vis Polgar and Truong in the context of
the Sam Sloan litigation. Plaintiff obtained possession of
attorney-client emails. Plaintiff then refused to state how she
specifically obtained the emails. Plaintiff was not a recipient of the
emails, and she refused to cooperate in an investigation trying to
uncover how and why she received stolen emails. One would have also
thought that Plaintiff and Truong would have cooperated with regard to
investigation pertaining to the stolen emails. However, instead of
cooperating with the continuing investigations, Plaintiff eventually
filed this lawsuit against the various defendants. Again, the filing of
this lawsuit has continued to put many of the Defendants in a delicate
situation of being faced with conflicting claims of being sued both by
Mr. Sloan, Mr. Parker, and Plaintiff in various different proceedings.
Other than the USCF and Randy Hough (whose email account was hacked
into), no other defendant has brought any claims against Plaintiff.
15. On August 7, 2008, Plaintiff sued Defendants for various claims.
16. Simply put, Kronenberger was never the attorney for Plaintiff.
Plaintiff has not produced any evidence to show that Kronenberger was
her attorney. As seen by Exhibit A, Tab
6 Plus, another Plaintiff later sued the USCF, Polgar, Truong, and
others over the alleged fake Sam Sloan postings. See See Parker v.
Goichberg, et al., Civil Action No. 08-CV-829 (E.D. Pa. Jan. 2, 2009).

1 (Appendix, p. 9), the engagement letter was with the USCF only. There
is no separate engagement letter with solely Plaintiff. In fact,
Kronenberger was hired, among other reasons, to investigate the
allegations in the Mottershead Report, and, as such, Polgar's
allegations that Kronenberger represents her simply do not make sense.
Further, in various emails and/or other statements, both Plaintiff and
her husband have claimed that Karl Kronenberger is not their attorney.
See Exhibit A, Tab 3 (Appendix, p. 18) (where, among other statements,
Polgar states, "He [Kronenberger] does not represent me or Paul.").
17. For all of these reasons, summary judgment is proper on all of
Plaintiffs claims against Kronenberger.7
ARGUMENTS AND AUTHORITIES
A. Defendants were never Plaintiff's attorney.
18. Under Polgar's theory, Polgar apparently believes that a corporation
should not be allowed to hire an attorney to represent it when faced
with alleged improper acts done by executives and/or officers of a
corporation. Under Polgar's theory, she apparently believes that if an
attorney is retained by an organization, the attorney also represents
the officers of the organization. Consequently, an organization is
apparently unable to ever investigate and/or do anything about possible
misconduct by an executive and/or board member. Such an argument has no
legal support and/or authority.
19. Indeed, Polgar filed suit against Karl Kronenberger and his firm
likely as a result of her displeasure with Kronenberger's request for
information from Polgar and/or her husband, Truong, and Kronenberger's
subsequent investigation done at the request of his client, the USCF.
7 Kronenberger has had to report the claims to its insurance company.
Further, Kronenberger asserts that Plaintiff's claims were filed in an
attempt to conflict Kronenberger out of the California Action and to
intimidate Kronenberger, as this lawsuit was served just hours before
Kronenberger was due to present facts regarding Truong's alleged
wrongdoings to the USCF Board of Delegates.

The USCF had tried to get Truong to admit or deny various claims that
were being made against him. More specifically, Kronenberger requested
that Truong deny being involved with fake Sam Sloan postings and provide
documents or information to support such an anticipated denial. See
Exhibit A, Tab 2 (Appendix, p. 15). The USCF, through Kronenberger, also
was not able to get Truong to cooperate. Plaintiff Polgar sent a letter
to Kronenberger that was not responsive to the specific requests of
Truong in Kronenberger's letter. Plus, the USCF was later unsuccessful
in trying to take Truong's deposition in Texas under a Rule 202
proceeding. Truong and Polgar were both asked to provide depositions.
Both Truong and Polgar refused to attend depositions. Consequently, the
USCF was unable to take sworn testimony from Polgar and Truong. To this
date, Truong still has not specifically denied the claims and/or denied
that he had any involvement with any of the fake Sam Sloan postings
under oath.
20. In retaliation, Polgar filed this lawsuit and sued not only USCF but
its attorneys,
Kronenberger. Polgar has provided no evidence that she was ever the
client of Kronenberger. Indeed, the engagement agreement itself states
that the firm was retained by the USCF. See Exhibit A, Tab 1 (Appendix,
p. 9). In various statements, Polgar stated that Kronenberger was not
her attorney but instead was the attorney for the USCF. See Exhibit A,
Tab 3 (Appendix, p. 18). Notwithstanding such statements, Polgar still
has sued Kronenberger to improperly harass same and/or in an
impermissible attempt to try to disqualify Kronenberger from continuing
the investigation and from representing the USCF in the California Action.'
8 Plaintiff recently filed a motion to disqualify Kronenberger in the
California proceeding.

B. California law demonstrates that Kronenberger was never Plaintiff's
attorney in
her individual capacity.'
21. The California court in Synergy Tech & Design Inc. v. Terry, 2007 WL
1288464 at *7 (N.D. Cal. May 02, 2007) followed previously decided case
law that had held, "To 'state the obvious, an attorney's duty to his or
her client depends on the existence of an attorney-client relationship.
If that relationship does not exist, the fiduciary duty to a client does
not arise.' Fox v. Pollack, 181 Cal. App. 3d 954, 959 (1986) (citations
omitted)." Synergy Tech & Design Inc. v. Terry, 2007 WL 1288464 at *7
(N.D. Cal. May 02, 2007).
22. Other California courts have held that the question of whether an
attorney-client relationship exists is one of law. Koo v. Rubio's
Restaurants, 135 Cal. Rptr. 2d 415 (Cal. Ct. App. 2003). "An
attorney-client relationship is not created by the unilateral
declaration of one party to the relationship. (See Fox v. Pollack, 181
Cal. App. 3d 954, 959, 226 Cal. Rptr. 532 [individuals cannot
unilaterally create an attorney-client relationship without the
agreement of the attorney].) Rather, the relationship can only be
created by contract, express or implied. (Responsible Citizens v.
Superior Court, 16 Cal. App. 4th 1717, 1732, 20 Cal. Rptr. 2d 756 (Cal.
Ct. App. 1993); Fox v. Pollack, supra, 181 Cal. App. 3d at p. 959, 226
Cal. Rptr. 532.)" Koo v. Rubio's Restaurants 135 Cal. Rptr. 2d 415, 423
(Cal. Ct. App. 2003).
23. A similar situation was before the California court in Skarbrevik v.
Cohen, England & Whitfield, 231 Cal. App. 3d 692, 282 Cal. Rptr. 627
(Cal. Ct. App. 1991). There, a minority shareholder accused the
corporation's attorney of professional negligence and conspiracy to
defraud by diluting his interest in the corporation. The shareholder
contended that the attorney wrongfully failed to notify him of a
proposal to amend the corporate articles which
9 Although Defendants believe Exhibit A, Tab I. does not apply to
Plaintiff as the client was the USCF, if this Court somehow feels that
such agreement applies, then this Court should apply California law to
Plaintiff's claims against Kronenberger. California law should also
apply as Kronenberger is a California lawyer and did the vast majority
of his legal work in California.
10

caused additional shares of stock to be issued, diluting his ownership
interest from 25 percent to 4.7 percent. The California court concluded
that lain attorney representing a corporation does not become the
representative of its stockholders merely because the attorney's actions
on behalf of the corporation also benefit the stockholders. . . ." (Id.
at p. 703, 282 Cal. Rptr. 627; see also Vinci v. Waste Management, Inc.
(1995) 36 Cal. App. 4th 1811, 1815, 43 Cal. Rptr. 2d 337 [court held
that even if the plaintiff was the sole shareholder of a corporation
injured by a competitor's business practices, he lacked standing to sue
because: "The party directly injured by [defendant's] conduct was not
plaintiff, an individual, but Vinci Enterprises, Inc., a corporation.
The remedy lies with the corporation, not the shareholder, even if the
injured shareholder is the sole shareholder. [Citations.] In fact, to
allow a shareholder to sue on his own behalf would run the risk of
double recovery-once to the shareholder and once to the corporation."].)
See Fisher v. Burge, 2002 WL 788830 at *8 (Cal. App. 2 Dist 2002).
24. Another California court ruled that, "Appellant has not cited, nor
have we found,
any case holding that an attorney for a corporation is disqualified from
representing it in an action brought by it against one of its officers,
nor that in such an action the attorney may not use information received
from such officer in connection with company matters. The attorney for a
corporation represents it, its stockholders and its officers in their
representative capacity. He in no way represents the officers
personally. It would be a sorry state of affairs if when a controversy
arises between an attorney's corporate client and one of its officers he
could not use on behalf of his client information which that officer was
required by reason of his position with the corporation to give to the
attorney." See Meehan v. Hopps, 144 Cal. App. 2d 284, 301 P.2d 10, 14
(Cal. App. 1956) (emphasis added). Accordingly, Kronenberger's
representation of the

USCF could not have created an attorney client relationship between
Kronenberger and Polgar. Thus, under California law, summary judgment is
warranted.
C. Texas law also demonstrates that Kronenberger was never Plaintiff's
attorney in
her individual capacity.
25. Texas courts have long allowed corporations to pursue claims against
a manager or director, recognizing how an attorney for a corporation is
not automatically an attorney for the manager or director. As stated in
the seminal case of Sutton v. Reagan & Gee, 405 S.W.2d 828, 835 (Tex.
Civ. App. ï¿½ San Antonio 1966, writ ref d n.r.e.):
LC. . . Since the breach in mismanagement cases is of a duty owed to the
corporation, and the primary injury is to the corporation, the right to
recover therefor may be regarded as a corporate asset. When the
corporation enforces the liability of the director, the amount recovered
then becomes available for the benefit of all creditors, all of whom
have been similarly, if indirectly, injured . . . ."
. In addition, while directors may be held liable if they retain in a
responsible position a man who has shown himself dishonest or unworthy
of trust, such action involves a breach of duty to the corporation, for
which only the corporation or someone suing on its behalf may recover.
26. The corporation has been injured by the actions and mismanagement of
the Defendant and, as a result, the corporation has a right to seek
redress. See Fagan v. LaGloria Oil & Gas Co., 494 S.W.2d 624, 628 (Tex.
Civ. App. ï¿½ Houston [14th Dist.] 1973, no writ). If Polgar's theory is
truly believed, any attorney hired by a corporation then becomes the
attorney for each of the officers and directors. Under such a scenario,
how can that attorney ever be allowed to investigate and/or pursue
claims against officers and/or directors of a corporation? This is
ludicrous. Of course a corporation can hire an attorney to investigate
alleged wrongdoing by an executive or board member.'
10 In Defendant's retainer agreement, Defendants never agreed to
represent Polgar or Truong.

duty must prove the following:
a. The plaintiff and defendant had a fiduciary relationship;
b. The defendant breached its fiduciary duty to the plaintiff; and
c. The defendant's breach resulted in
i. injury to the plaintiff, or
ii. benefit to the defendant.
See Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999); Kinzbach Tool Co.
v. Corbett-Wallace Corp., 160 S.W.2d 509, 513-14 (Tex. 1942); Kelly v.
Gaines, 181 S.W.3d 394, 414 (Tex. App. ï¿½ Waco 2005); Hawthorne v.
Guenther, 917 S.W.2d 924, 934-35 (Tex. App. ï¿½ Beaumont 1996, writ
denied); Dearing, Inc. v. Spiller, 824 S.W.2d 728, 733-34 (Tex. App. ï¿½
Fort Worth 1992, writ denied); Mims v. Beall, 810 S.W.2d 876, 879-80
(Tex. App. ï¿½ Texarkana 1991, no writ); Hartford Cas. Ins. Co. v. Walker
Cty. Agency, Inc., 808 S.W.2d 681, 687088 (Tex. App. ï¿½ Corpus Christi
1991, no writ).
28. Section XI of Plaintiff's Amended Complaint alleges that
"Kronenberger and
Kronenberger Burgoyne, LLP owed Polgar a duty of loyalty and many other
fiduciary duties." However, Plaintiff's Amended Complaint fails to
identify any of the "many other fiduciary duties" or adequately describe
the nature of the duty of loyalty or any of the alleged fiduciary duties
owed to Plaintiff by Kronenberger. Plaintiff's complaint further fails
to describe the nature of any alleged breach other than to state that
"these two Defendants engaged in conduct designed to strip Polgar of
insurance benefits and a defense in litigation in which she has become
involved . . . ." This conclusory statement is wholly unsupported by any
proper evidence of

facts." Finally, Plaintiff's Amended Complaint as well as Plaintiff's
discovery responses attached hereto wholly fail to identify how
Kronenberger's alleged breach of fiduciary duty benefitted Kronenberger
in any way, nor do they offer adequate factual support in explaining how
any alleged breach caused Plaintiff injury. Plaintiff failed to provide
evidence to support a claim for breach of fiduciary duty against
Kronenberger, and therefore summary judgment is warranted.
29. Although Plaintiff claims that Kronenberger tried to strip her
insurance proceeds
from her, Kronenberger never spoke to the USCF's insurer about this;
further, Polgar was never damaged as the insurance company continued to
represent her and still continues to represent her to this date.
Consequently, Polgar is making frivolous claims to this Court as she was
never damaged. More concerning, though, is that all of Polgar's claims
regarding the USCF's insurer arise from content that was contained in
highly confidential and attorney-client privileged emails, that were
stolen by Polgar's business associate and accomplice, Gregory Alexander,
who, as alleged in the California Action, gave the stolen emails to
Polgar.12 Again, the attorney-client privileged emails should have
remained confidential and never been disclosed, and Polgar would not
have any of this information if it weren't for the theft of these
emails. Consequently, Polgar cannot sue Kronenberger for defamation
and/or any other claim as they were supposed to be private and supposed
to remain private."
Instead, a demonstrated herein, Polgar was never "stripped of insurance
benefits." Defendants request this Court to take judicial notice of the
New York Sloan lawsuit and confirm that Plaintiff has been continually
represented by counsel throughout said litigation.
12 Plaintiff may try to claim that she found them on the Internet, but
her accomplice has been forensically tied to the website where Polgar
supposedly obtained the emails. But for Plaintiff and Alexander stealing
the emails, they would never have been made public.
13 Otherwise, any plaintiff could always sue the opposing counsel if the
plaintiff could steal the defendant's emails that contain positions that
are likely contrary to the plaintiff's position.

30. Defendants also vigorously object to Polgar attempts to convert the
stolen privileged emails into public emails by continually referring to
them, posting them to the Internet and submitting them as exhibits to
public court filings. Polgar recently attached some of these stolen
emails to her Response in Opposition to Defendants' Joint Motion for
Protective Order and Brief in Support [Docket 137]. Polgar's lawyer was
informed early on that Defendants were not waiving the attorney-client
privilege; that Polgar's counsel was in possession of stolen emails; and
he should not disclose them and should return them:4 Instead, Polgar's
counsel has apparently decided to try again to make them public by
filing them in the records of the Court.' Polgar will likely claim that
they appear on the internet. However, Polgar's accomplice, Gregory
Alexander, was the one that put them on the internet. Consequently,
Polgar should not be able to protect her and her counsel from potential
liability when she was part of this conspiracy. Notably, there is no
case law that states that theft of privileged materials creates a waiver
of the privilege attached to such material. There must be some
affirmative, voluntary conduct that waives the privilege. See, for e.g.
Tex. R. Evid. 511 ("A person upon whom these rules confer a privilege
against disclosure waives the privilege if (1) he or his predecessor
while holder of the privilege voluntarily discloses or consents to
disclosure of any significant part of the privileged matter unless such
disclosure itself is privileged . . . .") (emphasis added).
31. As stated above, USCF and several other individual defendants were
sued in a New York lawsuit by Sam Sloan. Sam Sloan was demanding $50
million. Sam Sloan was alleging that Polgar and Truong made thousands of
false and defamatory Internet postings impersonating Sloan. See Sloan v.
Truong, et. al., 1:07-cv-08537-DC, Complaint [Docket 1],
14 See Exhibit A, Tab 4 (Appendix, p. 37).
15 Defendants again object to same and ask that they be stricken from
the Court's record.

V13-4, attached hereto as Exhibit B (Appendix, p. 59). Sam Sloan was
seeking re-election for an executive board position with the USCF, along
with Truong and Polgar.
32. Also, as previously discussed, in response to the Sam Sloan
litigation, USCF began investigating the allegations of the "Fake Sam
Sloan" posts as detailed in the Mottershead Report and in Sloan's
complaint. In addition to the Mottershead Report, two expert reports
were generated and that concluded that Susan Polgar's husband, Paul
Truong, had made some of the Fake Sam Sloan postings. See Exhibits C
(Appendix, p. 87) and D (Appendix, p. 90).' Sam Sloan alleged that both
Polgar and her husband had been seeking to become Executive Board
members during a time or times that Sam Sloan was running. Sam Sloan has
alleged that, as a result of the defamatory internet postings, Susan
Polgar and her husband were successful and he was not. In the Sam Sloan
litigation, USCF obtained litigation counsel, and the USCF's insurer
eventually appointed separate counsel to represent Susan Polgar and Paul
Truong in the New York Sam Sloan lawsuit, as the USCF and other
defendants were potential adverse to Polgar and Truong, if, in fact,
Paul Truong had done the fake Sam Sloan postings.
33. Also as previously discussed, USCF also engaged the law firm of
Kronenberger Burgoyne, LLP to further investigate the matter."
Immediately thereafter, the USCF formed a separate legal subcommittee
which consisted of the Executive Board members minus Susan Polgar and
Truong, in order to preserve confidentiality vis-a-vis Polgar and
Truong." Kronenberger wrote a letter to Paul Truong wherein he advised
Paul Truong that his firm represented the USCF and wherein he asked Paul
Truong to cooperate in the defense of the Sam Sloan lawsuit. Among other
things, Kronenberger asked Paul Truong to specifically deny in
16 Defendants also incorporate by reference the Mottershead report that
has already been provided to this Court.
17 Importantly, the USCF engaged Kronenberger Burgoyne, LLP, not Karl
Kronenberger directly.
18 The attorney-client relationship between the USCF and Kronenberger
Burgoyne, LLP was memorialized via a formal retainer agreement. No
retainer agreement exists by and between Plaintiff and Defendants.

writing that he was involved in the Fake Sam Sloan postings. Paul Truong
refused to deny in writing that he had done so.
34. Such facts demonstrate that Kronenberger represented USCF and was
not Plaintiff's attorney. Plaintiff knew that Kronenberger was
investigating her husband. Polgar has not produced any engagement
agreement that she executed allowing Karl Kronenberger and/or his law
firm to represent her. She has provided no document showing that Karl
Kronenberger and/or his law firm ever agreed to represent her.I9 In
fact, Karl Kronenberger told her and/or her husband that he represented
the USCF and did not represent her. Karl Kronenberger also later began
investigating how Polgar obtained confidential and privileged emails
that had been sent to the litigation subcommittee. Plaintiff had somehow
obtained a copy of these confidential emails, and she has refused to
state how she had gotten copies of the emails and also given conflicting
stories regarding same. USCF then suspected that someone was improperly
and illegally hacking into other people's email accounts and retrieving
emails. Kronenberger also then requested Polgar's assistance in trying
to uncover how stolen emails were appearing on the internet. Polgar
refused to provide assistance with regard to this investigation. It is
clear that Kronenberger was not Polgar's attorney and owned no duties to
her. Thus, summary judgment is warranted on Plaintiff's breach of
fiduciary duty claim and legal malpractice claim.
35. As seen by Exhibit, Tab 1 (Appendix, p. 9), Kronenberger's
engagement agreement was solely with the USCF. The engagement agreement
is directed to the United States Chess Federation, Inc. In the first
numbered paragraph, the engagement agreement is specific as to the
identification of the parties. It states:
19 even if Plaintiff could prove an attorney-client relationship, which
Defendants expressly deny, any such relationship would have been with
Kronenberger Burgoyne, L.L.P. and not Karl Kronenberger, individually.
Therefore, any cause of action for breach of fiduciary duty and/or legal
malpractice against Karl Kronenberger, personally, is inappropriate for
this additional reason.

This agreement, executed in duplicate with each party receiving an
executed original, is made between Kronenberger Burgoyne, LLP, hereafter
referred to as the "Finn," and United States Chess Federation, Inc.,
hereafter referred to as "Client."
See Exhibit A, Tab 1 (Appendix, p. 9). Polgar is not listed as a party
to the engagement agreement. The legal services to be provided
specifically include the fact that Kronenberger will be investigating
the "validity of a website administrator's report" as well as undertake
other things. This report was the Mottershead report. Importantly,
Polgar knew that Kronenberger was being retained to investigate her own
husband, and Polgar knew that Sam Sloan had alleged in his complaint
that both Polgar and Truong were responsible for the Fake Sam Sloan
postings. Polgar knew that Kronenberger was retained to investigate both
Polgar and Polgar's husband, and that Kronenberger was not being
retained to be a lawyer for Polgar and her husband.
36. In responding to discovery requests, Polgar has never produced a
copy of any engagement agreement between her and Kronenberger Burgoyne,
LLP, and/or Karl Kronenberger. In fact, when Polgar answered discovery,
Polgar was asked in Interrogatory No. 21 [from Karl Kronenberger] and
Interrogatory No 22 [Kronenberger Burgoyne, LLP], please explain all
reasons why you believe Defendant was your attorney. In response,
Plaintiff stated as follows:
Please see Plaintiffs Responses to the Requests for Production from
Defendants Continental Chess, Inc., Jerome Hanken, Karl Kronenberger
Burgoyne, and United States of America Chess Federation, Inc. Plaintiff
reserves the right to supplement this response.
See Exhibit E (Appendix, p. 102). Plaintiff has refused to state why she
believes that Kronenberger was her attorney.

37. Plaintiff was also evasive and untruthful in answering Requests for
Admissions."
In responding to Requests for Admissions, Plaintiff denied that "Karl
Kronenberger never received any payment from Plaintiff for services."
See Exhibit F (Appendix, p. 134). However, as seen by Exhibit A
(Appendix, p. 4), Karl Kronenberger has never received any payment from
Plaintiff If Plaintiff has any evidence to the contrary, Plaintiff needs
to provide it to the Court. See also Plaintiff's responses to Requests
for Admission Nos. 73 and 74. Plaintiff also denied that "an officer of
an entity is a separate legal entity from the entity itself" See
Plaintiff's response to Request for Admission No. 76. Plaintiff denied
that she "has nothing in writing from Kronenberger that states that they
are her attorneys." See Plaintiff's response to Request for Admission
No. 71.2' However, if one truly exists, where is it? Again, if Plaintiff
has any such written documentation to the contrary, Plaintiff needed to
provide same.
38. Plaintiff also tries to deny that "she never signed any retainer
with Kronenberger."
Plaintiff may try to explain that there is somehow a binding contract
between her, personally, and Kronenberger. However, Plaintiff has
provided no evidence to support such an argument. Plus, if Plaintiff
still continues to claim that Defendants were her attorney based on
Plaintiff being an Executive Board member of the USCF, then Plaintiff
would not own her claims in her individual capacity, and Plaintiff's
whole lawsuit should be dismissed as Plaintiff's claims that she is
represented by Kronenberger in Polgar's capacity as an Executive Board
member would truly be owned by the USCF. In other words, if Plaintiff is
claiming that she, in her
representative capacity, as an Executive Board member of the USCF has
claims against Kronenberger because the USCF signed a engagement
agreement, then Plaintiff, individually,
20 Exhibit F has Plaintiff's Responses to the Requests for Admissions
from Defendant Karl Kronenberger to Plaintiff and Plaintiff's Responses
to the Requests for Admissions from Defendant Kronenberger Burgoyne,
L.L.P. to Plaintiff.
21 As seen by Exhibit A, Tab 3 (Appendix, p. 18), contrary to
Plaintiff's response to Request for Admissions no. 79, there are many
times that Plaintiff denied that Defendants were her attorneys.

should not have any such claims. Moreover, Plaintiffs individual
reputation in her own individual capacity would not have been tarnished
if she is truly suing in her capacity as an Executive Board member.'
39. Plaintiff denies that "she does not have any evidence that this
particular defendant ever made any statement to Plaintiff's employer,
the office of the President, Chancellors, and/or Provosts of Texas Tech
University." See Plaintiffs response to Request for Admission No. 59.
However, Plaintiff has not provided any such evidence that Karl
Kronenberger and/or his firm ever contacted same, and as seen by Exhibit
A (Appendix, p. 4), Karl Kronenberger has expressly denied same.
40. Plaintiff was asked and answered Request for Admission No. 79 as
follows: REQUEST FOR ADMISSION NO. 79:
Admit or deny that you have stated that Karl Kronenberger was not your
attorney.
RESPONSE:
Deny.
See Exhibit F, Plaintiff's response to Request for Admission No. 79
(Appendix, p. 134). As seen by the documents attached as Exhibit A, Tab
3 (Appendix, p. 18), Plaintiffs answer is untruthful as Plaintiff has
indeed denied that Kronenberger was her attorney, despite Plaintiffs
response to this Request for Admission to the contrary. See Exhibit F
(Appendix, p. 134). For these additional reasons, summary judgment is
proper.
22 Plaintiff's attorneys have sued many Defendants in different
capacities and Plaintiff should be held to the same standard.

D. Polgar's own statements made in various email communications and/or
other postings demonstrate that Polgar did not believe that Karl
Kronenberger and/or Kronenberger Burgoyne, LLP, were acting as her
attorneys. At a minimum, Plaintiff should be estopped from claiming to
the contrary.
41. In her Amended Complaint, Plaintiff alleges that Defendants were her
attorneys. These allegations conflict with Polgar's prior statements,
made back at the time when Polgar was supposedly relying on Kronenberger
to be her attorney, where Polgar said numerous times in emails and
postings and other correspondence that she did not view Karl
Kronenberger and/or his firm as her attorney. In other words, Plaintiff
is now trying to claim that Kronenberger was her attorney even though
she did not believe him to be her attorney back when Kronenberger was
retained.
42. For example, in an email sent December 1, 2007, Ms. Polgar stated as
follows:
Some of these issues have nothing to do with Mr. Kronenberger. Please
feel free to forward all appropriate issues to Mr. Kronenberger. He does
not represent me or Paul.'
See Exhibit A, Tab 3 (Appendix, p. 18) (emphasis added).24 This email
was sent after Kronenberger sent the November 30, 2007 letter to her
husband asking for Truong's cooperation. See Exhibit A, Tab 2 (Appendix,
p. 15).
43. This email was sent during the time when Karl Kronenberger had been
retained solely by the USCF. See Exhibit A, Tab 1 (Appendix, p. 9).
Kronenberger had already sent the letter to Truong on behalf of the USCF
asking him to do several things, and Plaintiff absolutely knew that
Kronenberger was not her attorney even though she is now trying to claim
to the contrary.
23 This email was sent approximately six weeks after Defendants were
retained by the USCF.
24 Defendants do not agree with the text in the emails and object to
same and are only using the emails/postings to show Plaintiff did not
think Defendants were her attorneys, and such statements are admissions
against her interests.

44. There are many other postings and/or emails sent by Polgar that
confirm that she did not view Kronenberger as her attorney. For example,
in a posting on or about Thursday, January 24, 2008, Polgar stated, "I
also expect them to say that their attornevis1 will not allow them to
release all confidential information . . . . Unless everything is
allowed (by the board and their attornev(s) . ." See Exhibit A, Tab 3
(Appendix, p. 18) (emphasis added).
45. On or about Saturday, January 26, 2008, Polgar made another posting.
In the posting, she talked about the USCF paying for "legal fees to our
regular USCF attorney as well as Mr. Kronenberger . . ." Again, Polgar
did not refer to Kronenberger as her attorney. See Exhibit A, Tab 3
(Appendix, p. 18).
46. On or about Monday, January 28, 2008, Polgar made a posting that
discussed the litigation. In the posting, Polgar stated, "Was the USCF
attorney notified of this? Did the USCF attorney authorize this?" Again,
this shows that Kronenberger was acting on behalf of the USCF and not
Polgar, individually, and that Polgar viewed Kronenberger as the USCF's
attorney and not her attorney. See Exhibit A, Tab 3 (Appendix, p. 18).
47. Later, Polgar referred to Kronenberger as "the USCF attorney for the
board." See Exhibit A, Tab 3 (Appendix, p. 18). If Polgar truly thought
Kronenberger was her attorney, surely she would have mentioned
Kronenberger as "my" attorney or "our" attorney.
48. On or about July 3, 2008, in response to an inquiry from Jack
Lemoine, Polgar wrote that the USCF had "their" attorney. More
specifically, Polgar stated as follows:
They expect me to trust them and their attorney after he asked the board
for permission to contact the insurance Chubb to try to cancel our
coverage and the board voted 5-0 to allow him to do it.
See Exhibit A, Tab 3 (Appendix, p. 18) (emphasis added).25
25 Again, Defendants object to the substance in the emails and postings
contained in Exhibit A, Tab 3, and Defendants are only offered the
evidence to show how Polgar viewed Defendants as not being her attorneys.

49. In contrast, in a posting that does not refer to Kronenberger on
Friday, January 16,
2009, Polgar refers to "us or our attorneys" and in another posting that
does not refer to Kronenberger on Monday, January 19, 2009, Polgar uses
the phrases "me or my team of attorneys," "their attorney," and "my team
attorneys." See Exhibit A, Tab 3 (Appendix, p. 18).
50. All of these postings show Plaintiff is making frivolous claims against
Kronenberger and never truly thought Karl S. Kronenberger and/or
Kronenberger Burgoyne, LLP, were her attorneys. Thus, summary judgment
is warranted for these additional reasons.
E. Legal Malpractice.
51. Under Texas law, a plaintiff asserting a cause of action for legal
malpractice must
prove the following:
a. The attorney owed the plaintiff a duty;
b. The attorney's negligent act or omission breached that duty; and
c. The breach proximately caused the plaintiff's injury.
See Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780,
783 (Tex. 2006); Alexander v. Turtur & Assoc., 146 S.W.3d 113, 117 (Tex.
2004); Joe v. Two Thin)) Nine Jt.V, 145 S.W.3d 150, 159 (Tex. 2004);
Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995); Cosgrove v.
Grimes, 774 S.W.2d 662, 665 (Tex. 1989); O'Donnell v. Smith, 234 S.W.3d
135 (Tex. App. ï¿½ San Antonio 2007, pet. filed 11-2-07); Hoover v.
Larkin, 196 S.W.3d 227, 231 (Tex. App. ï¿½ Houston [1st Dist.] 2006, pet.
denied); Cuyler v. Minns, 60 S.W.3d 209, 215 (Tex. App. ï¿½ Houston [14th
Dist.] 2001, pet. denied); Streber v. Hunter, 221 F.3d 701, 722 (5th
Cir. 2000).
52. Defendants incorporate by reference all of the above briefing and
evidence that
demonstrates that Plaintiff and Defendants never entered into an
attorney-client relationship.
Defendant incorporates by reference the facts and arguments in the
proceeding sections, as well
23

as Exhibits A (Appendix, p. 4), E (Appendix, p. 102) and F (Appendix, p.
134). Such evidence demonstrates that Defendants never owed Plaintiff a
duty in her individual capacity. Plaintiff has failed to provide
evidence to demonstrate how Kronenberger breached any duty of care that
arose from any alleged attorney-client relationship. Plaintiff has
provided no evidence to support the elements of this claim. Finally,
Plaintiff has failed to provide evidence to explain how any alleged
breach of duty on the part of Kronenberger caused injury Plaintiff, and
therefore summary judgment is warranted.
F. Even though Polgar's sole claims against Kronenberger appear to be legal
malpractice and fiduciary duty claims, in an abundance of caution,
Kronenberger requests a traditional and/or "no-evidence" summary
judgment on all the remaining claims to the extent that such claims are
against Kronenberger.
53. Plaintiff has claimed that various defendants did other tortious
conduct, including making various defamatory, libelous and/or slanderous
internet postings and/or other statements. However, Kronenberger has not
made any such postings and/or other statements. See Exhibit A (Appendix,
p. 4).
54. As seen by his Declaration, Karl Kronenberger has never communicated
with Texas Tech University, Louis XVI Restaurant, Deliberate Literate
LLC, Dr. Erik Moscow, Caprock Home Health Services, Giles McCrary, ODF,
Inc. d/b/a Exclusive Champagne, Tamas Karpati, SYMA+SD Kft., and/or
Steve Elek. These people/entities were listed in Plaintiff's
interrogatory responses as alleged contracts or business relationships
that various defendants allegedly tortiously interfered with. However,
for example, Karl Kronenberger has never spoken with anybody at Texas
Tech University. See Exhibit A (Appendix, p. 4).26 Plus, Karl
Kronenberger has not spoken with anybody else listed in the
interrogatory responses.
26 As seen by Exhibit I, Texas Tech University has no record of
Defendants contacting Texas Tech University (Appendix, p. 201).

55. When asked why Plaintiff believes Kronenberger was part of a
conspiracy, Plaintiff wholly refused to answer the interrogatory. See
Exhibit E (Appendix, p. 102), Plaintiff's response to Interrogatory No.
16.27 If Plaintiff had facts to support such a claim, Plaintiff should
have so answered the interrogatory response. Defendants were engaged by
the USCF to act as an attorney for this entity. Plaintiff was also asked
for all reasons supporting her claim that Kronenberger's alleged actions
were made with malice and Plaintiff again wholly refused to answer the
interrogatory. Plaintiff was also asked about any calls or other
contacts made to her employer, Texas Tech University. Plaintiff refused
to respond to such a request for information. See Plaintiff's responses
to Interrogatory Nos. 16, 17, and 18.
56. In Interrogatory No. 7, Plaintiff is asked to specifically describe
all statements the Defendants have made that would subject them to a
claim for defamation. Plaintiff refused to provide an answer under oath.
See Plaintiff's responses to Interrogatory No. 7. Plaintiff was also
asked in Interrogatory No. 5 to explain all representations, statements,
declarations or admissions made by Defendant. Again, Plaintiff declined
to provide any specific information. Simply put, if Plaintiff has claims
against the various particular Defendants, she needed to provide
specific facts to show how each Defendant was potentially liable.
However, Plaintiff has wholly failed to provide any evidence of same.
57. Defendants incorporate by reference their prior Motions to Dismiss
for Plaintiff's Failure to State a Claim Under Fed. R. Civ, P. 12(b)(6),
or in the Alternative, Motion for a More Definite Statement Pursuant to
Fed. R. Civ. P. 12(e) [Docket 20 and 211 and Memorandums in Support of
Motion to Dismiss for Plaintiff's Failure to State a Claim Under Fed. R.
Civ, P. 12(b)(6), or in the Alternative, Motion for a More Definite
Statement Pursuant to Fed. R. Civ. P.
27 Exhibit E has Plaintiff's responses to both Karl Kronenberger's and
Kronenberger Burgoyne, LLP's first set of Interrogatories.

12(e) [Docket 20-2 and 21-2] wherein Defendants went through all of the
claims being made by Polgar and went through all of the elements.'
Plaintiff has failed to provide any evidence to support all of the
elements for all of the remaining claims being brought by Plaintiff.
58. Plaintiff has also failed to provide evidence to support her claims
for malicious prosecution, indemnification, and abuse of process. Karl
Kronenberger and Kronenberger Burgoyne, LLP have not filed any lawsuits
or counterclaims, cross-claims, etc. against Polgar in any proceeding.
See Exhibit A (Appendix, p. 4). It has only been Polgar that has filed
claims by and between Polgar and Kronenberger. Consequently, any
malicious prosecution and abuse of process claims should be denied as a
matter of law. Furthermore, all discovery in the California action was
conducted pursuant to valid State Discovery Orders, which were briefed
and argued by counsel in front of a California judge. Polgar asks this
Court to sit in judgment of the California judge who considered and
eventually approved the discovery in the "John Doe" action." Polgar has
provided no evidence of any "special damages" as required by Texas law.
Additionally, Polgar has also failed to provide any evidence of any
contract and/or other document wherein these Defendants agree to
indemnify her. Moreover, Plaintiff has provided no evidence that these
Defendants had any duty to indemnify Plaintiff. Consequently, Plaintiff's
28 Defendant could have added all of such briefing to this motion and
gone through the elements. Instead, Defendants simply incorporate by
reference just as if the elements in the various causes of action had
been copied and put into this briefing. Plaintiff has failed to provide
evidence to support all of the required elements of all of her claims
she has brought against Defendants.
29 Defendants again incorporate by reference the California litigation
and ask this Court to take judicial notice of same.

newly added claims for indemnification, malicious prosecution, and abuse
of process should fail as a matter of law.3ï¿½
59. Regarding abuse of process specifically, Polgar's complaint alleges
that an action in California was "unlawfully filed." (First Amended
Complaint 1[70.) However, Polgar presented no evidence whatsoever to
support her claim. The common law claim of abuse of process refers to
the misuse of the machinery of the legal system for an ulterior motive.
Competitive Technologies v. Fujitsu Ltd., 286 F. Supp. 2d 1118, 1155
(N.D. Cal. 2003). To succeed in an action for abuse of process under
California law, a litigant must establish that the defendant: 1)
contemplated an ulterior motive in using the judicial process, and 2)
committed a willful act in the use of that process not proper in the
regular conduct of the proceedings. Estate of Tucker ex rel. Tucker v.
Interscope Records, Inc., 515 F.3d 1019, 1037 (9th Cir. 2008). Thus,
abuse of process only applies to judicial proceedings; furthermore, the
defendant must have misused a court process for an improper purpose. See
Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006) ("[T]he essence of the
tort [is] . . . misuse of the power of the court; it is an act done in
the name of the court and under its authority for the purpose of
perpetrating an injustice."); Flores v. Emerich & Fike, 416 F. Supp. 2d
885, 904 (E.D. Cal. 2006); Competitive Technologies v. Fujitsu Ltd., 286
F. Supp. 2d 1118, 1155 (N.D. Cal. 2003). Abuse of process does not apply
to actions taken outside of judicial proceedings that did not invoke
court processes.
60. Moreover, the initiation of a lawsuit, even for an improper purpose,
cannot support a claim for abuse of process. Ramona Unified School Dist.
v. Tsiknas, 135 Cal. App. 4th
30 Defendants also incorporate by reference Defendants' Second Motion to
Dismiss [Docket 112 and 113] and all of the arguments and briefing
therein regarding these three additional claims Polgar has brought. As
stated in said motion, Polgar has wholly failed to provide any evidence
to show that these defendants brought any claims against Polgar.
Defendants also incorporate by reference the replies to Plaintiff's
response to Defendants' Second Motion to Dismiss. All of such additional
briefing constitutes additional argument as to why the three claims
should fail. A copy of the reply is attached hereto as Exhibit G. For
example, Plaintiff has already brought a claim for abuse of process
against Defendants in the California proceeding, and Plaintiff should
not be allowed to bring the same claims in two different proceedings.

410, 520 (2005). Rather, abuse of process requires an abuse of the legal
machinery (i.e. an abuse of a legal process) after the initiation of a
lawsuit. Simply filing a lawsuit for an improper purpose cannot be an
abuse of process. See Trear v. Sills, 69 Cal. App. 4th 1341, 1359
(1999); Bidna v. Rosen, 19 Cal. App. 4th 27, 40 (1993) (abuse of process
claim concerns misuse of litigation tools once parties are in a lawsuit
regardless of whether there was probable cause to commence that lawsuit
in the first place); see also Heck v. Humphrey, 512 U.S. 477, 486, n.5
(1994) (abuse of process refers to the extortionate perversion of a
lawfully initiated court process).
61. None of the allegations in Polgar's complaint support a cause of
action for abuse of process. Some of Polgar's allegations refer to
actions that occurred prior to the filing of this lawsuit, and which
involved no legal processes or court procedures. As discussed above,
such actions cannot serve as a basis for an abuse of process claim when
they did not involve court processes. Plus, Defendants have not filed
any lawsuits against Plaintiff
62. For these additional reasons, Polgar's abuse of process claim and
various other claims must fail.
G. Polgar has released Kronenberger from all claims in a March 2, 2009
settlement
agreement.
63. On March 2, 2009, Polgar and her husband Truong apparently entered
into a settlement agreement with former USCF Executive Board member,
Joel Charming ("Charming"). Charming was an Executive Board member
during the time period the Polgar alleges her claims against
Kronenberger arose. See Exhibit H (Appendix, p. 191). Plaintiff produced
a copy of this document in responding to Requests for Production and did
not designate same as confidential.
64. This settlement agreement releases Channing "and all of his heirs,
executors, administrators, corporations, business entities, personal
representatives, trustees, representatives,

attorneys, predecessors, . . . from any and all claims debts,
liabilities demand, obligations, costs, attorney's fees, actions and
causes of action of every nature and character and description including
any claims or action resulting form or arising out of Channing's
negligence which Releasors have, may have had, or may have had in the
future arising out of, or in any way connected with, Channing's service
or action as a United States Chess Federation Executive Board Member or
in any way with, the United States Chess Federation and arising out of
any and all dealing had by and between the parties, or any nature
whatsoever, at any time through date hereof and thereafter." (Id.)
(emphasis added.)
65. Kronenberger does not assert that he is or was an attorney for
Charming. However, to the extent that Polgar asserts in this action that
Kronenberger was an attorney for Polgar, the Channing release should
serve as a release of Kronenberger. Polgar cannot have her cake and eat
it too. She must either assert that Kronenberger was her counsel, in
which case she has already released Kronenberger form any and all
liability, or Polgar must disclaim any attorney client relationship with
Kronenberger, in which case Polgar's claims against Kronenberger must
fail, and summary judgment is warranted.
H. Plaintiff's remaining claims fail for other reasons.
66. To maintain a defamation cause of action, the plaintiff must prove
that the defendant: (1) published a statement; (2) that was defamatory
concerning the plaintiff; (3) while acting with either actual malice, if
the plaintiff was a public official or public figure, or negligence, if
the plaintiff was a private individual, regarding the truth of the
statement. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (citing
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). To prevail
on a motion for summary judgment, a defendant must disprove at least one
essential element of the plaintiff's defamation claim. See WFAA-TV, Inc.
v. McLemore, 978 S.W.2d 568 (Tex. 1998); Doe v. Boys Clubs of Greater
Dallas, 907 S.W.2d 472,

476-77 (Tex. 1995). Plus, Plaintiff has failed to provide evidence to
support all of these elements.
67. A plaintiff's status dictates the degree of fault he or she must
prove to render the defendant liable. Fault is a constitutional
prerequisite for defamation liability. Gertz v. Robert Welch, Inc., 418
U.S. 323, 347 (1974) (holding that states may define for themselves the
appropriate standard of liability for a publisher of a defamatory
falsehood injurious to a private individual "so long as they do not
impose liability without fault"). Public officials and public figures
must establish a higher degree of fault. They must prove that the
defendant published a defamatory falsehood with actual malice, that is,
with "knowledge that it was false or with reckless disregard of whether
it was false or not." New York Times, 376 U.S. at 279-80 (defining the
actual malice standard and applying it to public officials); see also
Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) (applying the New York
Times actual malice standard to public figures). See WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568 (Tex. 1998).3' Plaintiff has wholly failed to
provide any evidence and/or otherwise demonstrate that Defendants made
any defamatory, libelous and/or slanderous statements. Plaintiff has
also wholly failed to provide any evidence that even if such statements
were made, which Defendants vigorously deny and have not been apprised
of any, that Defendants published such statements with actual malice as
defined herein.
68. The question of public-figure status is one of constitutional law
for courts to decide. See Rosenblatt v. Baer, 383 U.S. 75, 88 (1966);
Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.
1987). Public figures fall into two categories: (1) all-purpose, or
general-purpose, public figures, and (2) limited-purpose public figures.
General-purpose public figures are those individuals who have achieved
such pervasive fame or notoriety that they
31 Again, Defendants incorporate by reference their prior motion to
dismiss that lists the elements of Plaintiff's other claims.

become public figures for all purposes and in all contexts. See Gertz,
418 U.S. at 351. Limited- purpose public figures, on the other hand, are
only public figures for a limited range of issues surrounding a
particular public controversy. See id. See WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568 (Tex. 1998).
69. One need only refer to Plaintiff's Amended Complaint for evidence that
establishes that Polgar is a voluntary public figure. Plaintiff's
Amended Complaint includes extensive details regarding her public
notoriety, especially within the chess community. For example,
Plaintiff's Amended Complaint alleges as follows:32
"[F]or the last thirty-five years, Susan Polgar has crossed gender and
national origin barriers on the international level by becoming one of
the most successful and widely known chess players in the world. Polgar
has won ten Olympic medals and four Women's World Championships, and
after fifty-six games over a span of four Olympiads, she has never lost.
Susan became the first female to qualify for the "Men's" World Chess
Championship, thereby forcing the world chess federation to drop the
word "men" from World Chess Championship. She is the only World
Champion, male or female, to win the triple crown in chess (Women's
World Classical, Rapid, and Blitz Championships). At the age of
twenty-one, Susan Polgar was the first woman to earn the men's
Grandmaster title by fulfilling all of the traditional Grandmaster
requirements. She first became ranked number one in the world at the age
of fifteen and has remained ranked in the top three in the world for
over the last twenty-four years ....In 2003, the USCF honored her with
the Grandmaster of the Year award, making her the first female to
receive that honor. In 2004... at the 2004 Olympiad in Calvia, Spain,
[Polgar won] the first ever medal in history for the United States
Women's Team. She herself won the unprecedented amount of four medals at
that Olympiad, two gold and two silver, including the Best Overall
Performance of the entire Women's Olympiad. Through all her success,
Susan Polgar has dedicated herself, by substantial donations of her time
and money, to the promotion of the vast benefits of chess among youth
and especially young women. She is founder of the Susan Polgar
Foundation, a nonprofit organization to promote chess throughout the
U.S. for youth of all ages, especially young women. She is sponsor and
organizer of the prestigious annual Susan Polgar National Invitational
for Girls Championship, Susan Polgar World Open Chess Championship for
Girls, Susan Polgar World Chess Challenge for Boys, Susan Polgar
National Open Chess Championship for Girls, Susan Polgar National Chess
Challenge for Boys, the NY City Mayor's Cup and SPICE Cup. She has
written chess books published in several different
32 Defendants do not agree with all of these facts, and Defendants are
only providing same to support the argument that Plaintiff, herself,
considers herself to be a public figure.

languages and thirteen instructional chess DVDs. Polgar has been
featured in a worldwide documentary produced by National Geographic
called "My Brilliant Brain." Discussions are also underway to feature
Susan Polgar in other films and endorsement contracts. In May 2007,
Texas Tech University announced it had established the Susan Polgar
Institute for Chess Excellence (SPICE) and hired Polgar as its executive
director and head coach of the Texas Tech Knight Raiders chess team.
Polgar and her family permanently relocated to Lubbock, Texas in August
2007. Texas Tech created SPICE with the ideas of building one of the
world's premier centers for chess education, research and outreach and
of solidifying Texas Tech as a national chess contender. In merely one
year of its existence, SPICE has experienced growth in chess
scholarships at Texas Tech University and hosted the Second Annual SPICE
CUP International Invitational Grandmaster Tournament in September 2008,
which was the highest rated 10- player international round-robin in
United States history given the caliber of the Grandmasters appearing.
Texas Tech University, through the reputation and name recognition of
Susan Polgar, is quickly becoming recognized as the epicenter for
competitive and educational chess play and studies.
Plaintiff's Amended Complaint IN 19 - 22.
70. To determine whether an individual is a limited-purpose public
figure, the Fifth Circuit has adopted a three-part test: (1) the
controversy at issue must be public both in the sense that people are
discussing it and people other than the immediate participants in the
controversy are likely to feel the impact of its resolution; (2) the
plaintiff must have more than a trivial or tangential role in the
controversy; and (3) the alleged defamation must be germane to the
plaintiff's participation in the controversy. See WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568 (Tex. 1998).33 In this case, Plaintiff and
Truong chose to run for a Board member position with a national
organization.
71. Actual malice is a term of art, focusing on the defamation
defendant's attitude toward the truth of what it reported. See McCoy v.
Hearst Corp., 727 P.2d 711, 736 (Cal. 1986). Actual malice is defined as
the publication of a statement "with knowledge that it was false or with
reckless disregard of whether it was false or not." New York Times, 376
U.S. at 279-80.
33 This distinction is less important as it relates to Kronenberger as
any allegedly defamatory statements, if any, would likely allegedly
refer solely to issues related to her notoriety.

Reckless disregard is also a term of art. To establish constitutional
recklessness, a defamation plaintiff must prove that the publisher
"entertained serious doubts as to the truth of his publication." St.
Amant v. Thompson, 390 U.S. 727, 731 (1968). See WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568 (Tex. 1998).
72. A defendant is entitled to summary judgment under Texas law if it
can negate
actual malice as a matter of law. See Randall's Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 646-47 (Tex. 1995); Casso v. Brand, 776 S.W.2d
551, 555 (Tex. 1989). A libel defendant can negate actual malice by
presenting evidence that shows he or she did not publish the alleged
defamatory statement with actual knowledge of any falsity or with
reckless disregard for the truth. See Casso, 776 S.W.2d at 559. To
negate actual malice in another case, in her affidavit, WFAA reporter
Valerie Williams detailed her belief that all of the reports she made
were true and set forth the basis of those reports. Specifically, she
swore that "[she] believed [her] reports accurately reflected public
allegations by responsible, respected and well-informed journalists and
news organizations, regarding a highly newsworthy matter and concerned
an official investigation by law enforcement officers of a suspected
tip-off of the Branch Davidian cult." She explained in detail the
foundation of her belief by providing a chronology of the actions she
took and the materials she reviewed in preparing her report. This
testimony as to Williams' beliefs and the basis for them was sufficient
for WFAA to meet its burden of negating actual malice. See Randall's
Food Mkts., Inc., 891 S.W.2d at 646-47; Casso, 776 S.W.2d at 559; Carr
v. Brasher, 776 S.W.2d 567, 571 {Tex. 1989). As McLemore presented no
proof controverting these specific assertions, WFAA established as a
matter of law that it did not act with actual malice in reporting the
ATF's investigation into why the Branch Davidian raid failed, and

therefore WFAA was entitled to summary judgment on McLemore's defamation
claim. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998).
73. The summary judgment evidence, together with Plaintiff's own
pleadings, establishes that Plaintiff was a public figure. As a public
figure, Plaintiff has the burden to establish that any defamatory
statements were made with actual malice. WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 573 (Tex. 1998). A defendant is entitled to summary judgment
under Texas law if it can negate actual malice as a matter of law. See
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646-47 (Tex.
1995); Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989). A defendant can
negate actual malice by presenting evidence that shows he or she did not
publish the alleged defamatory statement with actual knowledge of any
falsity or with reckless disregard for the truth. See Casso, 776 S.W.2d
at 559.
74. When a claim for defamation is based on individual statements,
actual malice is defined as publishing a statement with knowledge of or
reckless disregard for its falsity. N.Y. Times, 376 U.S. at 279-80;
Turner v. KTRK Television, 38 S.W.3d 103, 120 (Tex. 2000); Bentley v.
Bunton, 94 S.W.3d 591 (Tex. 2002); see Freedom Newspapers v. Cantu, 168
S.W.3d 847,855 (Tex. 2005). Reckless disregard is a subjective standard
that focuses on the conduct and state of mind of the defendant at the
time of the publication. Forbes, Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 171 (Tex. 2003); Bentley, 94 S.W.3d at 591. It requires more
than a departure from reasonably prudent conduct; mere negligence is not
enough. See Forbes, Inc., 124 S.W.3d at 171; Bentley, 94 S.W.3d at 591.
There must be evidence that the defendant in fact entertained serious
doubts about the truth of her publication. Forbes, Inc., 124 S.W.3d at
171; Bentley, 94 S.W.3d at 591. For example, not investigating the facts
as a reasonably prudent person would do before speaking is not, standing
alone, evidence of reckless disregard for the truth. Bentley, 94

S.W.3d at 591. However, if not investigating the facts was contrary to a
speaker's usual practice and motivated by a desire to avoid the truth,
such action may demonstrate reckless disregard. Id. In establishing a
defendant's reckless disregard, the plaintiff is entitled to use
circumstantial evidence and may inquire about the defendant's motive and
care. Id. However, either lack of care or an injurious motive in making
a statement is not conclusive proof of actual malice, but only a factor
to be considered. Id. at 596; see Belo Corp. v. Publicaciones Paso Del
Norte, S.A. de C. V., 243 S.W.3d 152 (Tex. App.ï¿½El Paso 2007, n.p.h.).
Reckless disregard cannot be determined by the words alone, but must be
determined by applying those words to particular circumstances. Bentley,
94 S.W.3d at 592.
75. The summary judgment evidence establishes that Defendant
Kronenberger was employed, in part, to investigate the claims made in
the Mottershead Reportï¿½that Truong was responsible for some number of
the FSS posts. Defendant Kronenberger relied on the Mottershead Report,
as well as the opinions of two independent experts, in forming his
conclusions. See Exhibit C (Appendix, p. 87) and D (Appendix, p. 90)."
Defendant Kronenberger was asked to state his opinion before a
delegate's meeting, in a report to Kronenberger's client. The summary
judgment evidence reveals that any allegedly defamatory statement
alleged by Plaintiff must have derived from that delegates meeting.
Thus, Defendant had a reasonable basis for forming his opinions.
76. Plaintiff also wholly fails to explain why any such statements
and/or opinions should allow her to bring claims for defamation, libel,
and/or slander. Any statements made at that delegate's meeting which
referred to Plaintiff were merely ancillary in nature (i.e. when
Plaintiff moved to Lubbock or travelled to Mexico). Even if these
statements were false, which
34 The Mottershead Report was attached as Exhibit A to the United States
of America Chess Federation, Inc. Response to Paul Truong's Motion
Dismiss Under Rule 12(b)(1), or in the Alternative, Rule 14(a)(4) Motion
to Strike Third- Party Plaintiff's Complaint and Brief in Support and is
incorporated by reference.

Defendant denies, Plaintiff was not the subject of the opinions as
Defendant was only speaking about Truong. Plaintiff has a copy of the
transcript, and Defendant repeatedly clarified that he was not speaking
about Plaintiff Polgar, but was only speaking about Truong. Again,
Defendant was merely stating his opinions based on facts in various
reports and other information he had learned. Plus, as more fully
explained above, Kronenberger never contacted Texas Tech University, and
did not cause Plaintiff to lose insurance coverage, etc. Thus, summary
judgment is warranted on all of Plaintiffs claims against these Defendants.
I. Attorneys' Fees
77. Plaintiff's filing of claims against the USCF's attorney has made it
necessary for Kronenberger to employ the undersigned attorneys to
represent them in this matter. The reasonable and necessary attorneys'
fees incurred by Kronenberger for defending this case are currently in
excess of S92,905.77.35 Additional fees will accrue if counsel for
Kronenberger is required to prepare for and attend a hearing on this
motion, prepare a reply to any responses and/or in the event of an
appeal. Kronenberger is entitled to recover reasonable attorneys' fees
pursuant to Polgar stealing emails from Kronenberger to its client and
then subsequently suing Kronenberger.
78. Accordingly, Karl S. Kronenberger and Kronenberger Burgoyne, LLP
request that the Court, upon ruling favor of Karl S. Kronenberger and
Kronenberger Burgoyne, LLP, award Kronenberger its reasonable attorneys'
fees and expenses related to the claims of Polgar in this proceeding.
35 Under Exhibit A, Tab 2 (Appendix, p. 15), if the Court decides that
this retainer agreement applies to Plaintiff, the prevailing party
should be awarded its attorneys' fees.

CONCLUSION
For the foregoing reasons, Karl Kronenberger and Kronenberger Burgoyne,
LLP request that summary judgment be entered on their Motion for Partial
Summary Judgment and grant a take-nothing judgment on all of Plaintiff's
claims against them and/or dismiss with prejudice all Plaintiff's claims
against Karl Kronenberger and Kronenberger Burgoyne, LLP. Alternatively,
Defendants request that if the Court does not grant a summary judgment
on all of Plaintiff's causes of action against these Defendants, that
this Court grant a summary judgment on as many of Plaintiff's claims
against these Defendants that are appropriate. Lastly, Karl Kronenberger
and Kronenberger Burgoyne, LLP request that they be awarded their
attorneys' fees and costs and all other relief to which they are justly
entitled.
Respectfully submitted,
By: s/ William P. Huttenbach
William P. Huttenbach Federal I.D. No. 21742 State Bar No. 24002330
Hirsch & Westheimer, P.C. 700 Louisiana, 25th Floor Houston, Texas 77002
Email: phutt...@hirschwest.com
Telephone: (713) 220-9184 Fax: (713) 223-9319
ATTORNEY-IN-CHARGE FOR DEFENDANTS, KARL S. KRONENBERGER AND KRONENBERGER
BURGOYNE, LLP
OF COUNSEL:
HIRSCH & WESTHEIMER, P.C. Bank of America Center
700 Louisiana, 25th Floor
Houston, Texas 77002-2772 Telephone: (713) 223-5181
Telecopier: (713) 223-9319

LOCAL COUNSEL:
LaFONT, TUNNELL, FORMBY, LaFONT
& HAMILTON, LLP Bill LaFont
State Bar No. 11791000 Brent Hamilton
State Bar No. 00796696 PO Box 1510
Plainview, Texas, 79073-1510
Telephone: (806) 293-5361 Telecopier: (806) 293-5366
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served by
electronic mail by the Clerk of the Court via the ECF system to all
parties of record on June 11, 2009, as follows:
James L. Killion
Samantha P. Estrello
Killion Law Firm
P.O. Box 64670
Lubbock, TX 79424-4670
Sam H. Sloan
1664 Davidson Ave., Apt. 1B
Bronx, NY 10453-7877
Jeffrey B. Jones
Jones, Flygare, Brown & Wharton
P.O. Box 2426
Lubbock, Texas 79408-2426
sl William P. Huttenbach
William P. Huttenbach

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